WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Souter, 2019 ONCJ 986

DATE: 2019 01 24

COURT FILE No.: Bracebridge 2411-998-17-713

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Alastair Souter

Before Justice E.A. Carlton

Heard on October 15, 24, 25, November 30, 2018

Reasons for Judgment released on January 24, 2019

Melissa MacDonald............................................................................ counsel for the Crown

Peter Ward........................................................... counsel for the accused Alastair Souter

Carlton J.:

[1] Alistair Souter is charged with the sexual assault of C.W. on June 8, 2017.

[2] The Crown proceeded by indictment and Mr. Souter elected trial in this court. The Crown called eight witnesses and the defence called two witnesses.

[3] It is clear that there was an act of sexual intercourse that occurred between Mr. Souter and Ms. C.W. in Mr. Souter’s bedroom in the early morning hours of June 8, 2017.

[4] That fact is not established by the evidence of Ms. C.W.. She testified to having no memory of the event due to her intoxication. The fact of intercourse was established by means of evidence taken during an internal examination coupled with DNA evidence.

[5] The issues in this trial are (1) whether Ms. C.W. was capable of and/or did consent to that sexual activity and (2) whether Mr. Souter honestly believed that Ms. C.W. was consenting to the sexual activity.

[6] The Crown submits that it has been proven beyond a reasonable doubt that Ms. C.W. did not have the capacity to consent to the sexual activity and did not consent to the sexual activity. The Crown further submits it has also proven to the criminal standard that Mr. Souter knew, or was reckless or wilfully blind to the absence of consent or, alternatively, that Mr. Souter did not take reasonable steps to ascertain that the complainant was consenting.

[7] The defence submits that the approach in R. v. W.D., and the appropriate weighing of the evidence in this cases at a minimum raises a reasonable doubt on any or all of the issues of consent, including the issue of capacity by the complainant, and honest mistaken belief in consent by Mr. Souter.

The Evidence

[8] In order to assess these issues a summary of the evidence is necessary.

i) The Evidence of C.W.

[9] Ms. C.W. is now 25 years old. As of June of 2017 she had known Mr. Souter, who was then 55 years of age, for over a year.

[10] On the evening of June 7, 2017 she and her then boyfriend, J.W., were walking to downtown Huntsville when they were met by Mr. Souter. Ms. C.W. testified that Mr. Souter invited them to a small gathering on a side deck at a house on Main Street.

[11] Present at the gathering were Mr. Souter, L.S., “K.” and then C.W. and J.W. Ms. C.W. testified that she drank vodka straight from the bottle. She was unsure how much she drank but estimated that she consumed a mickey’s worth of liquor.

[12] Ms. C.W. testified that Mr. Souter told her that he wished he was twenty years younger. She describes Mr. Souter as “hitting on her”. She testified that she told Mr. Souter that she did not like his comments.

[13] Later in the evening the party moved to Mr. Souter’s bedroom on the second floor of the house. Mr. J.W. and Ms. L.S. left to purchase cocaine and then only J.W. returned. Ms. C.W. continued to drink alcohol. Ms. C.W.’s last memory of the evening is sitting on Mr. Souter’s bed with Mr. J.W. and J.T., her cousin, who had arrived later in the evening. She was wearing jeans and a sweater. She describes herself as intoxicated and having blurry vision and not being able to walk straight.

[14] Ms. C.W. testified that her next memory is waking up in the morning. The only other occupant of the room was Mr. Souter who was lying on the floor. He told her that Mr. J.W. and Ms. J.T. had left. Ms. C.W. testified that she felt “weird”. She was wearing pajama pants, a tank top and a bra. The bra was not sitting properly on one of her breasts.

[15] Ms. C.W. found her pants and underwear on the floor beside the bed. She left the apartment and later in the day went to work. There she met Mr. J.W. and Ms. J.T. who told her of their observations when they had returned in the morning and their concern that she had been sexually assaulted by Mr. Souter.

[16] Ms. C.W. went that evening to the Huntsville Hospital and then to the Orillia Soldiers Memorial Hospital where she was examined by a nurse and forensic samples obtained.

[17] Ms. C.W. testified to having no memory of engaging in any sexual activity with Mr. Souter. She testified that she did not consent to any sexual activity and did not utter words or engage in any conduct that would have conveyed her willingness to engage in sexual activity with Mr. Souter.

ii) The Evidence of J.W.

[18] Mr. J.W. is 22. In June of 2017 he was in a relationship with Ms. C.W. He described it as “not exactly dating but we were seeing each other”. He had known Mr. Souter from 2015.

[19] Mr. J.W. confirmed the initial meeting with Mr. Souter on the street and that Mr. Souter offered them a drink. He describes Ms. C.W. drinking vodka and whisky and that she became “dizzy”, was falling over and could not walk properly. There had been a plan to leave with another friend who was there briefly but Mr. Souter invited them to stay and they did.

[20] Mr. J.W. confirmed that the remaining people went upstairs to Mr. Souter’s bedroom. He describes Ms. C.W. as being rude to him. He left the house with Ms. L.S. to purchase drugs and came back around midnight. At that point K. was being taken to the hospital.

[21] Mr. J.W. confirms that later there were four people – he, Ms. C.W., Ms. J.T. and Mr. Souter in Mr. Souter’s bedroom. He describes Ms. C.W. as slurring her words and again being rude to him. He testified that all Ms. C.W. could do “was giggle and smile”.

[22] He left with Ms. L.T. at around 1 a.m. “to get back at Ms. C.W. for being rude to me”. He testified he left to look for a backpack he lost when he had been out with Ms. L.S. He was gone for several hours.

[23] When he and Ms. J.T. returned at around 4 a.m. he found the door to Mr. Souter’s bedroom locked. He banged on the door and Mr. Souter opened the door. He had no conversation with Mr. Souter.

[24] Mr. J.W. found Ms. C.W.’s pants and underwear had been removed and she was naked from the waist down. Her shirt had been pushed above her breasts and her bra had been pulled down below her breasts.

[25] Mr. J.W. testified that Ms. J.T. left and then came back at around 7 a.m. Ms. J.T. put pajama pants on Ms. C.W. and rearranged her shirt and bra. Mr. J.W. told Ms. C.W. to leave. He describes Ms. C.W. as not knowing what was going on and barely able to speak. He and Ms. J.T. left again at around 7:30 a.m.

[26] Mr. J.W. confirms that he and Ms. J.T. met with Ms. C.W. later that day at her place of work and told her what they had seen. Mr. J.W. later attended at both hospitals to support Ms. C.W..

iii) The Forensic Evidence

[27] Ms. C.W. did attend at the Orillia Soldiers Memorial Hospital for a “Sexual Assault Examination Kit”. The court heard from Leanne Gardner, the triage nurse at the Huntsville Hospital, P.C. Lynda Cranney, an O.P.P. officer who also assisted in the travel arrangements for Ms. C.W. to attend in Orillia and Christa Davidson, the nurse who conducted the examination.

[28] Ms. C.W. was described by those who saw her that evening and early morning as distressed and upset but coherent.

[29] During the examination, external and internal vaginal swabs were taken and a rectal swab was taken. Ms. Camilla Sewhdat, a forensic biologist at the Centre of Forensic Sciences testified for the Crown. Each of these samples contained a major profile from semen with a DNA profile that was consistent with the DNA profile from blood taken from Mr. Souter under warrant.

[30] The likelihood that the major DNA profile was from someone other than Mr. Souter but having the same DNA profile varied from 1 in 90 trillion for the rectal swab, to one in 110 trillion for the vaginal swab and to one in a 170 trillion for the external vaginal swab.

[31] The court also heard from Dr. Darryl Mayers, a forensic toxicologist with the Centre of Forensic Sciences. Blood and urine samples of Ms. C.W. were analysed for alcohol and drugs. I will refer to the details of that evidence later in the judgment.

iv) The Statements of Alastair Souter

[32] Mr. Souter gave two statements to Detective Mueller of the Huntsville O.P.P.: the first on June 21, 2017 and the second on August 18, 2017.

[33] Both statements were admitted as voluntary and transcripts of the statements were filed.

[34] No reports from the Centre of Forensic Sciences had been obtained at the time of the June 21, 2017 statement. Mr. Souter was not arrested but was cautioned at the start of the statement.

[35] Mr. Souter is somewhat combative and states repeatedly that the complainant came into his home uninvited. He confirms that he was on his deck with L.S. and “K.” who had brought a 60 ounce bottle of vodka.

[36] Mr. Souter states that he has “no idea” what happened that night. He stated that “I got drunk and I got invaded” Mr. Souter states that “I didn’t take advantage of her” in reference to Ms. C.W. When pressed he admits that “I’m not saying we didn’t fool around a little, fuck you know I’d be an idiot not to but that’s all I fucking know”. He states that Ms. C.W. “was kissing me and carrying on”. It appears this is reference to the time on the porch.

[37] When challenged that he had assaulted Ms. C.W. Mr. Souter states that “ask her. I don’t know. I don’t feel like I should be charged for rape. I think I was raped”. He confirms that Ms. J.T. put a pair of pajama pants of his on Ms. C.W.: “I was drunk and I woke up on the floor. J.T. came in and that was it, she goes why the fuck are her pants off her and I go I dunno. I told her she could go have a shower or bath if she wants.”

[38] He denies taking off Ms. C.W.’s pants or touching her breasts. He tells Detective Mueller that he was on the bed with Ms. C.W. for “maybe” fifteen seconds “and then I remember going hey man this isn’t cool”. When asked directly “did you have sex with that girl” he answered “no”.

[39] Mr. Souter is placed under arrest for sexual assault at the outset of the second statement on August 18, 2017 and advised that his DNA has been found from the examination of Ms. C.W.

[40] In this statement Mr. Souter variously denies intercourse, describes that he and Ms. C.W. “made love” and states that he was physically unable to engage in intercourse. He puts forward his theory that the DNA found was from Ms. C.W. wearing his track pants.

[41] Several times in the statement it is put to him that Ms. C.W. was not able to consent. His usual response is to state that he was also drunk and that Ms. C.W. raped him. He states his understanding of an assault “as being something violent” and that “as long as someone doesn’t say no it’s not an assault in my books”.

v) The Evidence of L.S.

[42] Ms. L.S. was present when Ms. C.W. and Mr. J.W. arrived at Mr. Souter’s home. She describes Ms. C.W. as “guzzling” vodka.

[43] Ms. L.S. testified to seeing Ms. C.W. sitting on Mr. Souter’s knee and grabbing at his genitals on four occasions. Ms. L.S. testified to pulling Ms. C.W. off and telling her “enough” only to have this action repeat itself 10-15 minutes later.

[44] Before leaving Ms. L.S. was upstairs in the bathroom with Ms. C.W.. She describes Ms. C.W. as “smashed” and “needing help”. Ms. C.W. was unsteady on the stairs and leaned on Ms. L.S. Ms. L.S. was offended by this action and left the residence.

Burden of Proof

[45] Mr. Souter is presumed innocent. There is no obligation on him to prove anything in this case. He can only be found guilty if the Crown proves the essential elements of the charge against him beyond a reasonable doubt.

[46] I note in contrast that there is no presumption with respect to any witness who testifies in court. Mr. Souter became distressed in court when the investigating officer referred to Ms. C.W. as the “victim”. Indeed, Ms. C.W. gave her evidence as a civilian witness. She is not in any way presumed to be a victim of any offence. She more accurately can be described as the complainant or alleged victim in this case.

[47] In using the term “reasonable doubt” I rely on the definition as set out in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320 as follows:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

W.D. Analysis and the Statement of the Accused

[48] The Crown has tendered two statements of Mr. Souter to Detective Mueller for their truth. Portions of those statements refer to a belief by Mr. Souter that Ms. C.W. consented to the sexual activity and that he had a belief that she consented to the activity.

[49] The approach set out in R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742 applies in this case. Given the introduction of these statements into evidence for their truth these statements are the evidence of Mr. Souter.

[50] Accordingly, if I accept the exculpatory statements of Mr. Souter or any other evidence inconsistent with guilt then I must acquit.

[51] Even if I do not accept the exculpatory statements of Mr. Souter or any other evidence inconsistent with guilt but I am left with a reasonable doubt about that evidence then I must acquit.

[52] Even if I do not accept nor I am left with a reasonable doubt about the exculpatory statements of Mr. Souter or any other evidence inconsistent with guilt I may only convict if, on the basis of the evidence I do accept, I find that the Crown has proven the essential elements of the offence beyond a reasonable doubt.

[53] This approach underlines that this case, like all criminal cases, is not a credibility contest. The court is not simply to choose which version, either that of the complainant or that of Mr. Souter as evidenced in his statements, it prefers. It is for the Crown to prove its case beyond a reasonable doubt.

Analysis

[54] The components of sexual assault are set out in R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330. At para. 25 the Court states that “the actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact and (iii) the absence of consent”. The first two elements are objective. The absence of consent is made out if the court accepts the evidence of the complainant that he or she subjectively did not consent to the sexual activity. This is “determined by reference to the complainant’s subjective internal state of mind, towards the touching, at the time it occurred” (at para. 26).

[55] At paragraph 42 of that decision the Court states that “the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”. The defence may challenge the presence of a guilty mind by “asserting an honest but mistaken belief in consent”. The Court explains the scope of the defence as follows (at para. 46):

In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused’s explanation as to what was going on in the complainant’s mind provides no defence.

[56] Limits on the defence of honest but mistaken belief in consent are set out in sections 273.1 and 273.2 of the Code. Section 273.1(1) sets out that “consent” means the voluntary agreement to engage in the sexual activity in question. Section 273.1(2) sets out conditions in which consent cannot be obtained. Section 273.2 sets out circumstances in which the defence of honest but mistaken belief in consent is not available including where the accused “did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”.

[57] This defence is a denial of mens rea. It does not require the accused to testify in order to raise the issue. Once raised the Crown must negative or disprove the test beyond a reasonable doubt.

i) Did Sexual Activity Occur

[58] Given that Ms. C.W. testified to having no recollection of engaging in any sexual activity with Mr. Souter I must first determine whether there was any sexual activity at all.

[59] I find to the criminal standard that an act of sexual intercourse occurred between Ms. C.W. and Mr. Souter.

[60] In his statement Mr. Souter refers to the pajamas worn by Ms. C.W. and/or the blankets as containing his semen from an earlier event.

[61] The vaginal swab is taken high inside the vagina in the area of the cervix. Ms. Sewdhat testified that a finding of semen here is consistent with an internal deposition. She testified that it is very unlikely that any semen transferred to external genitalia would be transferred to the area where the vaginal swab was taken.

[62] Mr. Souter ultimately admits that he and Ms. C.W. “made love”. I take that as a statement that an act of vaginal intercourse occurred.

[63] The Crown, in her submissions, referred to the forensic evidence establishing that an act of anal intercourse had occurred. I do not find that such an act occurred.

[64] Ms. Sewhdat did testify that semen would not likely be transferred from a garment to a rectal swab. She did not, however, testify that the finding of semen in the rectal swab suggests internal deposition. The rectal swab is taken just inside the body cavity. I cannot exclude the possibility that the finding of semen here is secondary to the vaginal deposition. At no time is Mr. Souter ever asked about anal intercourse nor does he admit to this act having occurred.

[65] These findings make out the first two elements of the actus reus of the offence of sexual assault: that there was a touching and that it was of a sexual nature.

ii) The Capacity and Actual Consent of C.W. to the Sexual Activity

[66] Ms. C.W. testified that she had no recollection of any sexual activity. She testified that she did not consent to any sexual activity.

[67] If I accept this evidence beyond a reasonable doubt then the Crown has proven the third element of the actus reus beyond a reasonable doubt.

[68] It is difficult, in the circumstances of this case, to easily separate the issues of the capacity to consent, actual consent and honest but mistaken belief in consent. There is considerable overlap between these issues and the evidence that applies to each. I will nonetheless endeavour to address them in turn.

[69] That said, the first issue to address is the credibility of Ms. C.W. that she has no memory of the sexual activity.

[70] I accept Ms. C.W. evidence that she has no current memory of the sexual activity. This absence of memory covers the period from when she was sitting on the bed between Mr. J.W. and Ms. J.T., sometime around 12:30 a.m. and to waking up in the morning at around 9 a.m.

[71] In general terms I found Ms. C.W. to be a credible witness. In particular I accept her evidence that at most she felt “weird” after waking up later in the morning but that she did not know she had engaged in sexual activity. Her actions that day are consistent with her evidence. She went to her grandmothers and then to work. It was only when told by Mr. J.W. and Ms. J.T. of their observations of her in the bedroom that she became concerned that she had engaged in sexual activity with Mr. Souter.

[72] I accept her evidence that her personal reaction was that you “never think it’s going to happen to you”. She asked for days off from work and testified that she “knew I needed the rape kit done”. She then spent several hours at two hospitals to allow for the collection of forensic evidence. While I do not draw any inference from her willingness to allow for an invasive physical examination, her actions are consistent with her evidence that she only learned of the possibility of sexual contact when speaking to her friends at work. I found her evidence in this area to be restrained and unexaggerated.

[73] In assessing her evidence generally, I must address whether her professed absence of any recollection of sexual activity was fabricated in order to explain the activity to her then boyfriend J.W.

[74] I do not find that Ms. C.W. is merely professing an absence of any recollection so as to explain or excuse a decision to engage in consensual sexual activity with Mr. Souter. It is clear that Ms. C.W. and J.W. were dating in June of 2017. It is clear that J.W. was offended by Ms. C.W.’s conduct with Mr. Souter when they were all out on the porch. He described Ms. C.W. as being “rude” to him both on the porch and upstairs in the bedroom before he left with Ms. J.T.

[75] At the same time the strength of the relationship between Ms. C.W. and Mr. J.W. as of the alleged offence date is somewhat unclear. Mr. J.W. testified they were “on and off”. Ms. C.W. was herself suspicious of Mr. J.W.’s activity with Ms. J.T. Although Mr. J.W. did admit in cross-examination that he “figured they (C.W. and Alistair Souter) had some fun I guess”, Mr. J.W.’s report to Ms. C.W. was that she had been raped. The conversation at Ms. C.W.’s workplace was not that of an accusation of consensual sexual activity and a demand by Mr. J.W. for some explanation. Ms. C.W. asked Mr. J.W. to leave her workplace when he told her his observations of her in the bed rather than try to explain what had happened.

[76] It appears that Mr. J.W. was supportive of Ms. C.W. later that night at the hospital. At the time of trial the relationship had ended and Mr. J.W. was living in another part of the province. Mr. J.W. did not appear to be tailoring his evidence to assist any party in this case.

[77] Again, I accept the evidence of Ms. C.W. that she has no recollection of the sexual activity.

[78] The acceptance of this fact is not the same as a finding that Ms. C.W. did not consent. There is no presumption that an absence of memory is proof of an absence of consent or an absence of capacity to consent (see R. v. J.R. (2006), 2006 22658 (ON SC), 40 C.R. (6th) 97 (Ont. S.C.J.) at paras. 17-20, aff'd (2008), 2008 ONCA 200, 59 C.R. (6th) 158 (Ont. C.A.); R. v. Meikle, 2011 ONSC 1332, [2011] O.J. No. 877 (S.C.) at paras 46-49). It is an error to accept an absence of evidence as to the sequence of events as positive evidence of lack of consent or incapacity.

[79] My finding that I accept as genuine the absence of memory of these events by Ms. C.W. does not alter the onus on the Crown on these issues. The law in this area is summarized by Justice Malloy in R. v. Nyznik, 2017 ONSC 4392, [2017] O.J. No. 4138 (S.C.) as follows (at para. 22):

Although an unconscious person is by definition incapable of consenting to sexual activity, the same is not the case for a person who is intoxicated by alcohol or drugs. There will be times when a person is so impaired by alcohol and/or drugs that he or she is incapable of consenting. Whether or not that state of incapacity has been reached is a factual finding to be made in the circumstances of each case. The fact that a complainant does not remember engaging in sexual acts, or has a complete blackout of the time in question, is not the same thing as lacking mental capacity to consent.

[80] In assessing whether Ms. C.W. did, in fact, consent to the sexual activity I must first address whether she had the capacity to consent as required by section 273.1(2)(b) of the Code. No consent can be given if the “complainant is incapable of consenting to the activity”. In order to be able to communicate ongoing consent to the sexual activity taking place the party must be conscious with an “operating mind, capable of granting, revoking or withholding consent to each and every sexual act” (see R. v. J.A., 2011 SCC 28 at para. 44).

[81] I rely on the summary of the test for capacity given by Justice Crosbie in R. v. C.P., 2017 ONCJ 277, [2017] O.J. No. 2221 as follows:

Essentially, courts have defined incapacity as requiring proof that the complainant was incapable of understanding the sexual nature of the act, or was not able to appreciate that they may choose to decline to participate in the activity (R. v. Jensen (1996), 1996 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.); appeal to S.C.C. quashed, 1997 368 (SCC), [1997] 1 S.C.R. 304). In other words, they must have a sufficient awareness of what is happening and an ability to make decisions and act on them. Cases where extreme intoxication have led to findings of incapacity to consent tend to be cases where the evidence of intoxication is far beyond the loss of gross motor skills and balance. These cases tend to include evidence of a loss of awareness or loss of consciousness.

[82] Similarly, in R. v. J.W.M., [2004] O.J. No. 1295 (S.C.), Justice Code stated the following: “while capacity to consent to sexual activity may not amount to a very significant standard of cognitive awareness, equating relatively primitive actions such as walking a short distance, or unassisted vomiting, to capacity to consent to sex is entirely unpersuasive. This is particularly so in light of the evidence of the complainant’s extreme intoxication including lack of consciousness after midnight” (at para. 56).

[83] I find that the Crown has proven that Ms. C.W. was incapable of consenting to the sexual activity beyond a reasonable doubt. I do so for the following reasons:

• It is clear that Ms. C.W. ingested a significant quantity of alcohol. She was consuming liquor straight from the bottle so no precise amount can be determined. Ms. C.W. described it as approximating a mickey. A defence witness described it as “guzzling” the liquor.

• It is equally clear that the effects of the consumption were apparent even prior to going into Mr. Souter’s bedroom. Ms. C.W. testified that she had blurred vision and was not able to walk straight. Mr. J.W. testified that C.W. was falling over and “dizzy” when outside. At the time he left with Ms. J.T., Mr. J.W. testified that “all she could do was giggle and smile”. Ms. L.S. testified that C.W. was “smashed” and had difficulty walking down the stairs.

• When Mr. J.W. returned, which he testified was around 4 a.m., he found C.W.’s pants and underwear removed. Her shirt was above her breasts and her bra had been pulled below her breasts. He did not speak to Ms. C.W. It is clear that Ms. C.W. did not put her underwear and pants back on after the sexual activity. She did not place her bra back in position or pull her shirt down. Whatever the exact state of the relationship between Ms. C.W. and Mr. J.W., if she had an operating mind and had consented to the activity, one would expect Ms. C.W. to put her clothes back on prior to his return to prevent questions being asked about the sexual activity.

• When Ms. J.T. returned a couple of hours later she put pajamas on Ms. C.W. and tried to fix her shirt and bra. Mr. J.W. tried to wake Ms. C.W. by shaking her but he could not wake her up. Ms. C.W. did not realize that her bra had not been put back on properly until the time she woke up at around 9 a.m. I accept this as additional evidence she was not aware of the efforts to put her clothing back on when that took place. Ms. C.W. had no memory of how the pajama pants were put on.

• When Mr. J.W. left at around 7:30 a.m. he tried to tell Ms. C.W. to leave. He testified that she did not know what was going on and could barely talk.

• Dr. Mayers testified about the testing of the blood and urine taken at 0032 hours and 0115 hours respectively on June 8, 2017. The sexual activity occurred sometime after 0030 hours on June 8, 2017 and prior to 0400 hours when Mr. J.W. returned to the room. Dr. Mayers testified that the maximum blood alcohol concentration 24 hours earlier was between 240 and 480 mg/alcohol in 100ml/blood. For someone the mass of Ms. C.W. this would equal between 10 ¾ fluid ounces and 21 ¾ ounces of 40% liquor in her system. The higher end of the range could lead to unconsciousness and death. The minimum blood alcohol concentration 24 hours earlier is zero. The urine testing showed positive for a metabolite of cocaine which signified use within the prior 2-3 days.

[84] I accept that the toxicology evidence is of little assistance in determining capacity given the very wide range of results available given the timeline. I do not find that Ms. C.W. ingested cocaine while at Mr. Souter’s residence.

[85] I find particularly persuasive the evidence of Mr. J.W., that I accept, that Ms. C.W. did not wake up when clothes were put on or rearranged by him and Ms. J.T. This would require considerable physical handling of Ms. C.W. and I accept that Ms. C.W. did not wake up nor have any recollection of this event.

[86] In assessing this evidence I do find to the criminal standard that Ms. C.W. was incapable of consenting to the sexual activity. The relevant period of time is the window when Mr. J.W. left with Ms. J.T. I find that Ms. C.W. had, at that point, consumed a significant quantity of alcohol. The effects of that consumption was evident in her speech and gait and her comprehension of events going on around her. It caused her to fall asleep on the bed. I find that during the relevant time she did not have an operating mind and did not have the minimal capacity to grant, revoke or withhold consent. Her absence of any memory of the event is not simply a “blackout” but consistent with her actual or near unconscious state during the event.

[87] In his statements to police Mr. Souter does address the condition of Ms. C.W. When it was suggested to her that she was not able to consent he stated “that’s her problem, she should stay out of my fucking house”. Implicit in that statement is a recognition that Ms. C.W. was not able to make decisions regarding consent. Mr. Souter makes a reference to Ms. C.W. “crawling up my stairs” and that “she should be more careful how much she drinks”. In response to the suggestion that Ms. C.W. “passed out in your bed” Mr. Souter responded “I don’t care she was hitting on me”. This appears to be a reference to the conversations on the deck. There is nothing in the statements of Mr. Souter that I accept as showing the capacity for Ms. C.W. to consent or that raises any doubt that Ms. C.W. was capable of consent when the act of intercourse occurred.

[88] I therefore find that Ms. C.W. did not consent to the sexual activity because she was not, in law, capable of consenting to the sexual activity.

[89] Ms. C.W.’s own evidence is that she did not agree or would not have agreed to the sexual activity. Given my finding on capacity, it is not necessary to examine the hypothetical question of whether she could have or might have consented to sexual activity had she had the capacity. Without capacity there cannot be a voluntary agreement to engage in the sexual activity in question. I will only add that there is nothing in the statements of Mr. Souter that is capable of raising a reasonable doubt on the issue of actual consent. There is no positive assertion that Ms. C.W. did consent. In the second statement Mr. Souter does say that “C. never said no. It wasn’t an assault. An assault fucking to me is something violent”. This is not, in law, an assertion of a voluntary agreement to engage in sexual activity.

[90] I therefore find that the Crown has proven the three elements of the actus reus of the sexual assault: a touching, that the touching was of a sexual nature and that the complainant did not consent to the sexual activity.

iii) Honest but Mistaken Belief in Consent

[91] This leaves the issue of mens rea: has the Crown proven to the criminal standard that Mr. Souter knew, or was reckless, or was wilfully blind, to the absence of consent. Put another away does the evidence raise a doubt that Mr. Souter had an honest but mistaken belief in consent and thereby provide a defence to the charge.

[92] In the circumstances of this case the issue is whether, although Ms. C.W. was not capable in law of consenting, that based on the circumstances known to Mr. Souter at the time he honestly believed that Ms. C.W. was consenting. The belief as to consent must only be honest and need not be reasonable. I may only consider the reasonableness as part of a broader assessment as to whether the belief was honestly held (see s.265(4) of the Code; R. v. S.T., [1999] O.J. No. 268 (S.C.) at para. 118).

[93] I note at the outset that the issue is Mr. Souter’s belief in the consent of Ms. C.W. to the act of intercourse. It is clear that there was some activity, described as flirting, that occurred between Ms. C.W. and Mr. Souter on the deck. This was described in quite different ways by the three witnesses who testified. Ms. C.W. described it as Mr. Souter “hitting on her” and had no response to whether she was being friendly in return. Ms. L.S. describes Ms. C.W. as being quite sexually aggressive and having to be physically removed from Mr. Souter by herself. Mr. J.W. describes Ms. C.W. as being “flirty” to Mr. Souter and being “rude” to him but denied that Ms. L.S. had to intervene. I accept Mr. J.W.’s evidence as the most accurate characterization of events prior to going inside the residence. Clearly, none of this behaviour, on any description, could ground an honest but mistaken belief in consent to an act of sexual intercourse a significant time later when inside the residence.

[94] I also note that Mr. Souter was himself drinking. Mr. Souter describes himself as an alcoholic and daily drinker. He told Detective Mueller that he consumed much more alcohol that evening than he usually does when G. arrived to share a 60 ounce bottle of liquor. Mr. J.W. testified that Mr. Souter, too, was “really drunk”, but also testified that when he left with Ms. J.T. that Mr. Souter was lying on the floor having a cigarette and that his speech was fine. I find that the defence of honest belief in consent that may be available to Mr. Souter is not premised upon his self-induced intoxication. Section 273.2(a)(i) does not prevent Mr. Souter from raising this defence.

[95] The basis for any honest but mistaken belief in consent arises from the evidence of Ms. C.W. and from the statements of Mr. Souter.

[96] Ms. C.W. was asked whether it could be assumed that she was asleep over the period she had no recollection and she answered that she “wouldn’t assume anything”. When asked if there was any other explanation other than alcohol for the absence of any recollection she stated that she “didn’t know”.

[97] These comments are not positive evidence of behavior that could ground an honest belief in consent. The statements simply leave open the possibility that, notwithstanding the absence of her ability to consent, she was behaving in a manner that caused Mr. Souter to have an honest but mistaken belief in consent. They allow for the possibility that “the accused's evidence of the complainant's participatory actions, if believed, might lead a jury to conclude that he honestly believed she was consenting despite his being mistaken about her ability to legally consent because of intoxication” (see R. v. Esau, at para. 18).

[98] Any positive evidence of honest but mistaken belief in consent is only raised by the statements of Mr. Souter. As this is a judge alone trial, I will address the defence on the merits and not first consider whether there is an “air of reality” to the defence (see R. v. Gagnon, [2018] SCC 41 affirming 2018 CMAC 1, [2018] C.M.A.J. No. 1).

[99] In examining the statements to Detective Mueller I must put Mr. Souter’s demeanour and approach into proper context. Mr. Souter tells police that he had been drinking prior to each statement and that he drinks every day. The statements were admitted as voluntary. Mr. Souter does not appear intoxicated and clearly has an operating mind. He details a difficult life history and is by turns both respectful and combative with Detective Mueller. Each participant employs harsh language during the statements.

[100] Based on all of the evidence in this case, including the statements of Mr. Souter, I find that the Crown has proven beyond a reasonable doubt that Mr. Souter did not honestly believe that Ms. C.W. was consenting.

[101] The first statement is taken when the DNA results are not known Mr. Souter denies taking off any of Ms. C.W.’s clothing or taking advantage of her. He admits only to “horsing around” and kissing. He stated that he realized this “wasn’t cool” and ended the activity. I find this to be an admission that he knew that any sexual activity was improper given Ms. C.W.’s condition.

[102] In this statement Mr. Souter emphatically denies that he and Ms. C.W. had sex. Given my independent findings that intercourse did occur, I find this to be after the fact conduct consistent with guilt.

[103] Near the end of the statement Mr. Souter states:

“What do you want? Do you me to do just lie down and play dead?” (at line 1683)

“If you’ve got (forensics) then I’ll go to jail but can I go home now please” (as heard by me on tape at line 1700)

[104] These comments come after a categorical denial of having engaged in sexual intercourse with Ms. C.W. They disclose a conscious decision to deny the fact of intercourse. I find these statements to be a recognition that there is no defence of consent available to him given the condition of Ms. C.W. The last statement is an admission that if intercourse is proven that he has no defence.

[105] In the second statement he is confronted with the DNA evidence. He ultimately admits to having had sex with Ms. C.W. He claims that Ms. C.W. was coming on to him and that maybe he was raped by her.

[106] Even in the second statement the only assertions of consent are Mr. Souter’s comments such as “it was her coming on to me and I’m the bad guy” and that “we made love”. It is not clear whether the first comment is in reference to events on the porch or the sexual activity in the bedroom. Neither of these comments is anything more than a bare assertion of consent. Despite being given several opportunities Mr. Souter makes no reference to any actions of Ms. C.W. that would show why or how he believed that Ms. C.W. communicated her consent to the sexual activity. He states that “C. never said no” and that “an assault is something violent”. Neither of these statements demonstrate an honest belief that Ms. C.W. voluntarily consented to the sexual activity.

[107] I do not accept the evidence of Mr. Souter, as given in these statement tendered for their truth by the Crown, that he honestly believed that Ms. C.W. was consenting to the sexual activity. I find that the statements do not raise a reasonable doubt that Mr. Souter honestly believed in consent. On the evidence I do accept I find that the Crown has shown beyond a reasonable doubt that Mr. Souter knew, or was reckless, or was wilfully blind to the absence of consent by Ms. C.W.

[108] In the circumstances I do not therefore need to thoroughly examine the issue of whether or not Mr. Souter’s honest belief is based on the taking of reasonable steps, in the circumstances known to him, to ascertain that Ms. C.W. was consenting.

[109] I will note that Ms. C.W. attended at Mr. Souter’s home with her boyfriend. Ms. C.W. knew Mr. Souter but not well. There is a significant difference in age between the two parties. At the time of the sexual activity she had consumed a substantial amount of alcohol. Her boyfriend had left her sleeping on her own in Mr. Souter’s bed. While there had been some flirting out on the deck there had never been any discussion of sexual activity later on in his room. It is not clear whether his description that Ms. C.W. “was coming on to me” refers at all to events in the bedroom. Other than this single undetailed description there is no evidence of any word or gesture by Ms. C.W. or himself that demonstrates in any fashion reasonable steps to ascertain her consent. There is no disclosure of any conversation of any kind in the bedroom. There is no description of how clothing was removed or the sexual activity itself.

[110] For these reasons had I accepted or had a reasonable doubt that Mr. Souter did have an honest belief that Ms. C.W. was consenting I would have found the defence not available to him as the Crown has proven to the criminal standard the absence of taking reasonable steps to ascertain consent.

Conclusion

[111] I therefore find that the Crown has proven both the actus reus and the mens rea of sexual assault beyond a reasonable doubt. Mr. Souter will be found guilty of the offence as charged.

Released: January 24, 2019

Signed: Justice Carlton